Excerpt:.....been good or his work has not been satisfactory. 3 are perfectly valid and within the power of the state government under rule 34 of the kerala sarvice rules, that these orders in fact have granted a 'pra mature increment,'that the result of the grant of that increment is to enhance the pay of the petitioners to the next stage in the time-scale applicable to them, that from the date on which this increment was to take effect, namely, 5 january 1967, their pay will be the pay that they were receiving before the date plus the normal increment in the time-scale applicable to each of the petitioners concerned, that that pay is the substantive pay, of these persons from that date and that any out in that pay can only be taking action under the civil services (classification, control and..........before us in these petitions. these exhibits are copies of the identical order passed by the state government on 12 may 1967. to understand the contentions relating to the claim that this order has to be set aside, it is necessary to state a few facts.4. earlier, the governor of kerala promulgated an ordinance, the kerala essential services (maintenance) ordinance, 1966, on 22 december 1963, and the same was published in the gazette dated 22 december 1966. as envisaged by sub-clauses (i) and (ii) of clause (a) of section 2 of the said ordinance, a notification s.r.o. no. 465 of 1966 was also issued by the state government on 22 december 1966 and published in the kerala gasette extraordinary on that date. under that notification all services under the kerala state electricity board.....

Judgment:

P. Govindan Nair, J.

1. The main points raised in these original petitions are the same. So we propose to dispose of these petitions by a common judgment.

2. In the view that we are taking in these cases it is unnecessary to deal with all the contentions that have been raised in each of these petitions. We shall, however, refer to the main contentions.

3. The validity of the order, Ex. P. 4 in Original Petition No. 1449 of 1967, Ex P. 4 in Original Petition No. 1450 of 1967, Ex. P. 5 in Original Petition No. 1530 of 1967 and Ex P. 4 in Original Petition No. 1958 of 1967 is challenged before us in these petitions. These exhibits are copies of the identical order passed by the State Government on 12 May 1967. To understand the contentions relating to the claim that this order has to be set aside, it is necessary to state a few facts.

4. Earlier, the Governor of Kerala promulgated an Ordinance, the Kerala Essential Services (Maintenance) Ordinance, 1966, on 22 December 1963, and the same was published in the gazette dated 22 December 1966. As envisaged by Sub-clauses (i) and (ii) of Clause (a) of Section 2 of the said Ordinance, a notification S.R.O. No. 465 of 1966 was also issued by the State Government on 22 December 1966 and published in the Kerala Gasette Extraordinary on that date. Under that notification all services under the Kerala State Electricity Board as well as the following services--

(1) all services under the Health Services Department,

(2) all services under the Public Health Engineering Department connected with water-supply and drainage,

(3) all services in the Civil Supplies Department both under the Government and the Board of Revenue,

(4) the Kerala Treasury Service and the Kerala Treasury Subordinate Service,

(5) the Kerala National Employment Service and the Kerala National Employment Subordinate Service,

(6) services of persons working as superintendents, stenographers, telephone operators and drivers in all offices, and

(7) services of persons working in secret sections, account sections, budget sections, and election sections in all offices--

were declared to be essential services for the purpose of the said Ordinance.

5. A further notification S.R.O. No. 466 of 1966 in exercise of the powers conferred by Sub-section (1) of Section 3 of the Kerala Essential Services (Maintenance) Ordinance, 1966, was issued prohibiting strikes in all services declared by the Government to be essential services for the purpose of the abovementioned Ordinance. Clause (3) of Section 3 of the Ordinance, enacts that any strike declared or commenced, before or after the issue of the order under Section 3 by a person employed in any essential service is illegal and Section 4 imposes penalties for striking or otherwise taking part in any strike which is illegal.

6. Notwithstanding the promulgation of the Ordinance and the declaration of certain services as essential services and the prohibition of strikes in these services by the notifications under the Ordinance, the non-gazettad officers in the State in many of its departments went on strike on 6 January 1967. Then Ex. P. 1 order in Original Petition No. 1449 of 1967 was passed by the State Government on 12 January 1967 and the relevant part of that order is in these terms:

(1) Those who are convicted in the prosecutions taken in connexion with the strike will be dismissed after consulting the Public Service Commission wherever necessary.

(2) Non-gazetted officers other than new recruits who work regularly during the strike period will be given an advance increment.

(3) All non-gazetted officers (including police force) other than new recruits who work during the strike period will be given daily allowance equal to the rate admissible under the Travelling Allowance Rules appilcable to them for each day of their work. The expenditure will be debited to office contingencies of the respective departments.'

7. This order was issued 'by order of the Governor,' signed by the Chief Secretary. On 19 January 1967, the Government by order Ex. P. 3 In Original Petition No. 1449 of 1967 also issued 'by order of the Governor' clarified that the advance increment ordered in Para. 2 of the Government order Ex. P. 1 will take effect from 5 January 1967 and will be without prejudice to the normal increments due to the officers. This order Ex. P. 2 was followed by another order dated 13 March 1967, Ex. p. 3 in Original Petition No. 1449 of 1967, incorporating further clarifications, also issued 'by order of the Governor' signed by a Secretary to the Government.

8. It is stated that pursuant to the orders referred to, the increment which has been referred to as ' an advance increment' in the order Ex. P. 1 was given and the persons who became entitled to the benefit of these orders received enhanced pay resulting from the grant of the increment. As stated already, this increase in their pay resulting from the increment granted by these orders did not affect the rights of those who received this increment to get their normal increment as and when it fell due.

9. Then came the order Ex. P. 4. We shall read that order ; --

GOVERNMENT OF KERALA

Abstract.--Public services--Advance Increments granted to the non-gazetted officers during the strike--Review of orders issued.

Public (S.S) Department

G.O. (Ms.) No. 154

Trivandrum, 12 May 1967

Read-- (1) G.O. (Ms.) No. 5/Pablic, dated 12 January 1967.

(2) G.O. (P.) No. 21/Public, dated 19 January 1967.

(3) G.O. (Ms.) No. 85/Publio, dated 13 March 1967.

Order

In the Government orders read above orders were issued granting an advance increment to the non-gazetted officers who worked regularly during the strike period. On a review of the above orders, Government direct that payment of advance increment will be continued in the case of aongazottsd personnel of the police and fire force as explained n Para. 7 of G.O. (P.) No. 21 of 1967, Public, dated 19 January 1967, and similar non-gazetted jail personnel and that in all other cases the advance increment be discontinued with effect from 30 April 1967.

(By order of the Governor)

Ghorge Thomas,

Chief Secretary,

10. Even before this order was issued, in fact soon after Exs. P. 1 and P. 2 orders were issued by the State Government, an Original Petition No. 398 of 1967 was moved by the secretary of the Kerala Non gazetted Officers' Union challenging: the validity of those orders. One of the contentions raised in that original petition is that Government had no authority to grant the increment under Rule 34 of Part I of the Kerala Service Rules, which is apparently the rule under which the Government purported to act. It is urged in this connexion that Rule 34 in Part I of the Kerala Service Rules must be read as circumscribed by the Government decision dated 23 January 1964. Various other grounds are also mentioned in the original petition. That petition has also come up for disposal. We have referred to this petition only for the purpose of referring also to the contentions of the State Government contained in an affidavit that was filed in answer to that original petition on 22 February 1967. This affidavit has been produced and marked as Ex. P. 5 in Original Petition No. 1449 of 1957. In this affidavit It has been categorically stated that the orders Exe. P. 1 and P. 2 ' are perfectly legal and valid and in conformity with the provisions of Rule 34 in Part I ' of the Kerala Service Rules. This stand had not been adhered to for long; before the year was out, another affidavit was filed in the same case on 5 October 1967 where the contention has been raised that the grant is outside Rule 31 in Part I of the Kerala Service Rules. The relevant averments are contained in Para 2 thereof which runs thus:

In the counter-affidavit filed earlier in this case, it was stated that Exs. P. 1 and P. 2 orders were in conformity with Rule 34, Part I of the Kerala Service Rules. I am authorized by Government to submit that this statement was made on a misapprehension of the true meaning and content of the rule aforesaid. On a reconsideration of the matter, Government was satisfied that the Impugned orders were really beyond the scops of that rule and that they were not supported by any rule relating to service conditions. Accordingly It leaned an order dated 12 May 1967 that the advance increment, except in the case of certain service personnel mentioned in that cadre, will be discontinued with effect from 30 April 1967.

Counter-affidavits have been filed in Original Petitions Nos. 1449 and 1460 of 1967 on 24 June 1967, and cu 6 October 1967, in Original Petition No. 1630 of 1967, and a joint counter-affidavit for Ordinal Petitions Nos. 1546, 1530 and 1644 of 1967 on 11 August 1967. The averments in three affidavite are the same in so far as they pertain to Rule 34 above mentioned and are contained in Paras. 4 and 5 thereof which we may extract:

4. The advance increment sanctioned to non-gazetted officers who attended to their work during the strike period is neither stated to be nor is it in terms of any provision in the Kerala Service Rules. Rule 34 of Part I of the Kerala Service Rules enables the Government to grant a premature increment to an officer on a time-scale of pay. A premature increment contemplates the grant of increment at a point of time earlier to the date on which the increment would normally fall due. The 'advance increment' sanctioned by Exs. P. 1, P. 2 and P. 3 orders, notwithstanding the use of the word ' advance,' is in fact an extra or additional increment. In particular, Ex. P. 2 order directed that the advance increment ordered will be 'without prejudice to the normal increments due to the officers.'

5. In Ex-P. 5 counter-affidavit filed by the State in Original Petition No. 398 of 1967, it was no doubt stated that the aforesaid advance increment was sanctioned in conformity with the provisions of Rule 34 of Part I of the Kerala Service Rules. I submit that the above statement was made on a misapprehension of the true meaning and content of Rule 34. For the reasons stated in Para. 4 above the advance increments sanctioned in Exs. P. 1 to P. 3 order is really beyond the scope of premature increment contemplated by Rule 34 and was in fact an ex gratia benefit, not supported by any particular rule relating to service conditions.

11. It is further clear from the averments in these later affidavits that this change between the stands taken in the affidavit filed on 22 February 1967 in Original Petition No. 398 of 1967 le said to be due to 'a misapprehension of the true meaning and content of Rule 34,'

12. The petitioners have contended that Ex. P. 4 order in Original Petition No. 1449 of 1987 violates Rules 6 and 31 of the Kerala Service Rules, that it amounts to the infliction of a punishment on those who got the benefit of the earlier orders and is bad in that no opportunity was granted to the persons affected to state their cases before the punishment was inflicted, that it is violative of Articles 14, 16 and 19 of the Constitution, that it even infringes Article 311 of the Constitution. They have also contended that the increment was given under Rule 34 of Part I of the Kerala Service Rules, that it was legally and validly and deservedly given and that the decision of the Government dated 23 January 1964 referred to in Original Petition No. 398 of 1967 cannot and did not limit the application of Rule 34.

13. It is further urged that even If the order Ex. P. 4 does not amount to an infliction of punishment, the order should not have been passed without at least affording an opportunity to the persons who are to be adversely affected by the order to state their contentions and to establish that the order is unjustified and cannot be passed. At the time of argument it was also contended that by Ex. P. 4 order, the pay of the petitioners have been out and that there is no provision is the relevant rules enabling that being done, that it is against the rules and that is without authority and illegal. The contention that the order Ex. P. 4 is bad in that it is violative of the principles of natural justice is stated in Para. E of the grounds in Original Petition No. 1449 of 1967 in these terms:

Exhibit P. 4 order affecting my conditions of service (discontinuance of increment granted) is passed without affording the petitioner an opportunity to show cause against the proposed action and hence violative of the principles of natural Justice.

14. There are similar contentions is the other original petitions as well and the answer to these contentions in the various affidavits is in the same terms. We may refer to Para. 13 of the counter-affidavit filed in Original Petitions Nos. 1449 and 1450 (a common affidavit) dated 23 June 1967--

The question of giving the petitioner an opportunity to show cause against the decision does not arise as Ex. P. 4 order does not purport to effect any punishment. It does not also operate to infringe any legal light of the petitioner.

15. We think, at any rate, for the present that the decision in these cases must be on the basis of the answer to the question as to whether the order Ex. P. 4 is valid notwithstanding the fact that no opportunity had been granted to the petitioner and others affected by the order to state their case or their contentions before the order was passed.

16. Pay has been denied in the Kerala Service Rules in Rule 12(23) in those terms:

'Pay' means the amount drawn monthly by an officer as--

(i) the pay, other than special pay or pay granted in view of his personal qualifications, which has been sanctioned for a post held by him substantively or in an officiating capacity, or to which he is entitled by reason of his position in a cadre,

(ii) personal pay and special pay, and

(iii) any other emoluments which may be specially classed as pay by the Government.

And Rule 12(33) defines substantive pay thus:

Substantive pay means the pay other than special pay, personal pay or emoluments classed as pay by Government under Rules 12(23)(11) and 12(23)(iii) above to which an officer is entitled on account of the poet to which he has been appointed substantively or by reason of his substantive position in a cadre.

Rule 31 states:

An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from an officer by the Government or by any authority to whom the Government may delegate this pew-r under Rule 9. If his conduct has not been good or his work has not been satisfactory. In ordering the withholding of the increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.

17. We may also refer to Rule 34 under which it is said that increments have been granted--

The Government may grant a premature increment to an officer on a timescale of pay.

18. From the above provisions it prima facie appears that a Government employee in a time-scale of pay is entitled to receive his pay according to that scale and also to receive ordinarily his increments in that scale. If a premature increment has been validly given, he will also be entitled to receive his pay thus enhanced to the next stage in the time-scale.

19. It is the contention of the petitioners that the orders Exs. P. 1 to P. 3 are perfectly valid and within the power of the State Government under Rule 34 of the Kerala Sarvice Rules, that these orders in fact have granted a 'pra mature increment,' that the result of the grant of that increment is to enhance the pay of the petitioners to the next stage in the time-scale applicable to them, that from the date on which this increment was to take effect, namely, 5 January 1967, their pay will be the pay that they were receiving before the date plus the normal increment in the time-scale applicable to each of the petitioners concerned, that that pay is the substantive pay, of these persons from that date and that any out in that pay can only be taking action under the Civil Services (Classification, Control and Appeal) Rules, 1960, by way of punishment reducing their pay to a lower stage in the time-scale. No action has admittedly bean taken under the Civil Services (Classification, Control and Appeal) Rules, 1960. Therefore, the reduction of the pay of the petitioners which has been effected according to the petitioners by Ex P. 4 order is unjustified, unwarranted by the rules and illegal. We may refer hero to the wording of the order Ex. P. 1 which states that 'the advance increment be discontinued with effect from 30 April 1967.' According to the petitioners on the date on which the order Ex. P. 4 was passed there was no question of discontinuing an increment, for, by the grant of the increment the amount of money represented by the increment had merged in the pay and the order Ex, P. 4, whatever it states, actually reduced the pay of the petitioners which they were entitled under the rules to receive and that therefore the contention that there was an unwarranted reduction of pay must be upheld.

20. We have not referred to all the contentions of either side. And it seems to us it is unnecessary to refer to all these contentions, particularly in view of the stand taken by the State Government that the orders Exs. P. 1 to P. 3 are not illegal though they may not: be under Rule 34 of the Kerala Service Rules. In fact what is stated in the counter-affidavit is that the grant was an ex gratia grant. Whatever that be,--we do not wish to express any opinion thereon at this stage--there seems to be little doubt that as a result of the increment granted, the pay of the petitioners has been enhanced, that they received the enhanced pay for Borne time though not for a considerable length of time and that by virtue of Ex. P. 4 order the pay that they had been receiving got reduced by an increment under the respective time-scales of pay.

21. In such circumstances, there can be little doubt that the order Ex, P. 4 is one which has civil consequences. Such an order against a Government employee, it is clear, cannot be passed without affording an opportunity to the persons who will be affected by that order. This has been so laid down by the Supreme Court in the decision in Slate of Orissa v. Dr. (Miss) Binapani Dei and Ors. 1967-II L.L.J. 266, We shall read Paras. 9 and 10 of this judgment [at p. 269] which are in these terms:

9. Respondent 1 held office in the Medical Department of the Orissa Government. She, as holder of that office, had a right to continue in service according to the rules framed under Article 309 and she could not be removed from office before superannuation except' for good and sufficient reasons.' The State was undoubtedly not precluded, merely because of the acceptance of the date of birth of respondent 1 in the service register from holding an enquiry if there existed sufficient grounds for holding such enquiry and for re-fixing her date of birth. But the decision of the State could be based upon the result of an enquiry in a manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of justice and fairplay. The deciding authority, it is true, it not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to Bet up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is Bought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.

10. The State has undoubtedly authority to compulsorily retire a public servant who is superannuated. But when that person disputes the claim, he must be informed of the case of the State and the evidence in support thereof and he must have a fair opportunity of meeting: that case before a decision adverse to him is taken.

22. The controversy in the cases before us stems from what has been stated in the affidavits to be a misapprehension of the scope of Rule 34 of the Kerala Service Rules, and to what has been referred to as a ' matter of public policy ' of the State Government In Para. 8 of the counter-affidavit, dated 23 June 1967, filed in Original Petition No. 1449 of 1967. Counsel on behalf of the petitioners contended that the policy of the State Government as discernible from the orders passed (Exs. P. 1 to P. 3) as also from the affidavit filed on 22 February 1967 in Original Petition No. 398 of 1967 is the ensuring of the continued working of at least the essential services in the interests of the general public This policy, it is submitted, embodies a desirable purpose, in fact the main purpose if not the only one, for the discharge of which a Government exists. This policy it is said is not less important than the policy of permitting employees of the State to agitate by way of 'collective bargaining' referred to In Para. 6 of the counter-affidavit dated 24 June 1967 in Original Petitions Nos. 1449 and 1450 of 1967. If it is a question of choosing between the two policies, the former policy, it is urged vehemently, must be adhered to. This, it is further submitted is what has been done by the State Government in passing Exs. P. 1 to P. 3 orders. Benefits accrued to certain employees who acted on these orders of Government at grave risk to their persons not to mention the odium that is attached to persons who be act and against the general decision to paralyse the work of the Government, that these benefits resulted in the enhancement of their pay which they were entitled to continue to receive thereafter under the rules applicable and that such benefits cannot be taken away by the State Government. It is farther pointed out that it is dear from all the affidavits that have been filed on behalf of the State that as a result of Exs. P. 1 to P. 3 at least certain essential items of work could be attended to. Reference was also made to the decision of the Supreme Court in Union of India and Ors. v. Om Prakash, etc. A.I.R. 1968 S.C. 718 wherein it has been held:

that even though the case did not fall within the terms of Section 115 of the Evidence Act, it was still open to a party who had acted on a representation made by the Government to claim that the Government shall be bound to carry out the promise made by It, even though the promise was not recorded in the form of a formal contract as required by Article 299 of the Constitution.

23. There is no gainsaying the fact that there are important circumstances which have to be carefully considered after affording an opportunity to those affected to state all their contentions. Principles of natural Justice demand that this is the minimum that should be done. The Supreme Court in the judgment in State of Orissa v. Dr. (Miss) Binapani Dei and Ors. 1967-II L.L.J. 266 (vide supra) has emphasized this aspect, and as we read the judgment, has laid down that the principles of natural justice transcends all other considerations. This is particularly so in these cases, where various Important questions arise, such as whether the petitioner and others who received the increment were not entitled to continue to receive their pay as enhanced by this increment and whether there is power at all to make any out in it and whether in view of what has been laid down by the Supreme Court in Union of India and Ors. v. Om Prakash. etc. A.I.R. 1968 S.C. 718 (vide supra) the benefit can be taken away at all. The question of discrimination also arises. These are matters to be considered by the Government. We express no opinion regarding these. All that we need say is that the order Ex. P. 4 has civil consequences and that the order has been passed without granting an opportunity to the petitioners and others similarly situated to state their cases or raise their contentions. The order Ex. P. 4 has therefore to be vacated. We set aside that order and allow these writ applications. In all the circumstances of the case, we make no order as to costs.